London Borough of Hackney (19 020 025)

Category : Environment and regulation > Pollution

Decision : Upheld

Decision date : 28 Jan 2021

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s handling of his reports about nuisance from communal lighting in flats near his home and the Council’s consideration of his subsequent complaints. We have found some evidence of fault by the Council and recommended it apologises to Mr X. The Council agreed. We do not consider the fault affected the Council’s decision the lighting does not amount to a statutory nuisance.

The complaint

  1. The complainant, who I shall call Mr X, complains about the Council’s handling of his reports about nuisance from communal lighting in a block of flats opposite his home. He has concerns about the investigation carried out by officers and their conduct. Mr X is also unhappy about the Council’s consideration of his complaint about these matters.

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What I have investigated

  1. I have investigated Mr X’s concerns about the Council’s consideration of his reports of nuisance and his subsequent complaints about this. I have not investigated Mr X’s concerns about the determination of the planning application for the block of flats and the later parts of my statement explain my reasons for not doing so.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)
  5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of my investigation I discussed the complaint with Mr X and considered information he provided. I made enquiries of the Council and considered its response and documents it provided. I also had regard to the relevant policies and legislation. I set out my initial thoughts on the complaint in a draft decision statement and considered Mr X’s comments in response.

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What I found

Relevant Legislation

The Clean Neighbourhoods and Environment Act 2005, Section 102 and 103

  1. This amended the Environmental Protection Act 1990 to include nuisance from artificial light in the statutory nuisance regime.

DEFRA Guidance on Sections 101 to 103 of The Clean Neighbourhoods and Environment Act 2005

  1. This guidance was written to assist local authority Environmental Health Officers (EHOs) when investigating reports of a potential statutory nuisance from artificial light. It says they consider issues such as the duration of the nuisance, frequency, impact, local environment, motive and sensitivity of the complainant.

The Environmental Protection Act 1990, Section 82

  1. Under this section, members of the public can complain to a magistrates’ court about an alleged statutory nuisance and ask it to serve an abatement notice.

Background

  1. In 2015 the Council received a planning application to build an apartment block opposite Mr X’s home.
  2. The Council consulted local residents including Mr X. He raised objections including concerns that light pollution from the development would affect his home.
  3. The Council granted planning permission for the development in May 2016 subject to conditions. There was no condition relating to artificial light from the development.
  4. In March 2018, after the apartment block had been built, Mr X reported nuisance from artificial lighting in the communal hallway.
  5. The Council’s Out of Hours (OOH) service called Mr X and asked if the light was affecting his bedroom and preventing him sleeping. Mr X said it was not and explained it affected his kitchen and bathroom. For this reason, the OOH service advised it would not visit but would forward the complaint to Environmental Health Officers for further consideration.
  6. The Council emailed Mr X two days later. It asked him to contact it that evening to arrange a visit to assess the lighting. It explained a statutory nuisance would likely only be found if the light was preventing Mr X doing something he would otherwise be doing such as sleeping or reading. The Council says Mr X did not reply to the email.
  7. In May Mr X made another report to the OOH service regarding nuisance from the same lighting. The officer on duty told Mr X he would visit to inspect the problem.
  8. The Council says EHOs visited and were shown to the kitchen by Mr X. It says they observed internal hallway lights (one on each floor) of the apartment block. While they agreed the lights were shining into Mr X’s kitchen, they did not consider they would disturb Mr X other than when he was working in the kitchen. For this reason, they did not consider there was a statutory nuisance.
  9. Following the visit, the Council says it asked the developer responsible for managing the building to ask if the lights could be repositioned and subsequently the lights were positioned so they shone away from Mr X’s home and changed the bulbs to a lower wattage. Mr X says this did not happen.
  10. The Council says it notified Mr X of the outcome of his report and that it did not amount to a statutory nuisance. This was reiterated in September in an email that advised Mr X he could take his own action under section 82 of the Environmental Protection Act 1990.
  11. Mr X next reported a problem with the lights in October 2018 through his ward councillor.
  12. In response, officers visited Mr X at his home. On arriving Mr X showed Officer A and another officer (who Mr X says did not identify themself) to his kitchen to witness the light. The Council says officers found the light on the second floor of the apartment block was brighter and shining directly into Mr X’s kitchen where his sink was.
  13. The officers considered the light would be a nuisance when Mr X was using his sink but would not otherwise affect his enjoyment of his home. Therefore, they did not consider the light was a statutory nuisance.
  14. Mr X says he found the visit strange. One of the officers hid behind his boiler. He says the other officer was rude and told him he should get a blind for his kitchen window as this would resolve the problem.
  15. In March 2019 Mr X approached his local councillor for assistance with his concerns about the visit in October. This eventually resulted in a response being sent from the Head of Environmental Health to Mr X’s councillor.
  16. The response said:
  • officers identified themselves to Mr X;
  • Mr X was aware the purpose of the visit was to see if there was a statutory nuisance;
  • the assessment was cut short when Mr X became agitated after he was told that fitting a blind might help reduce glare from the light;
  • the glare only affected the sink area and a blind could reduce this. The light only affected Mr X’s kitchen which is a non-habitable room. For these reasons it did not consider the light was a statutory nuisance; and
  • Mr X was advised of the outcome of the visit in a letter sent to his councillor.
  1. Mr X disagrees with the contents of the Council’s response. He says it contains falsehoods about his conduct and false assertions about the light nuisance. In particular he says:
  • only one officer identified themself;
  • he was unaware the purpose of the visit was to determine if the light amounted to a statutory nuisance;
  • the assessment was not cut short and officers proceeded to consider light entering his living room (from shops on the road outside);
  • the officer who suggested getting a blind was deliberately provocative and seeking to cause mischief;
  • the letter to his councillor did not explain how the Council decided the light was not a statutory nuisance;
  • the officer said the light affected the sink area but did not say it only affected this area;
  • he has never needed a blind before and installing one would make it difficult for him to use the kitchen window for ventilation; and
  • the officers’ opinion is subjective and not based on any measurement or description.

For these reasons Mr X made a complaint about the conduct of all officers involved in his case and the March response to his councillor.

  1. The Council’s Head of the Environmental Health responded to Mr X’s complaint in late November. It did not uphold his complaint and concluded there had been no fault.
  2. Mr X was unhappy the response came from the Head of Environmental Health. He also said the response contained factual inaccuracies including that:
  • officers from the managing developer had visited his home following his report in May 2018 and changes had been made to the positioning or brightness of the lights;
  • he had he become highly agitated during the visit in March 2019 and shouted at officers; and
  • officers cut short their visit as they continued to assess light nuisance to his living room.
  1. Mr X also refuted the Council’s view that officers assessed the problem properly. He pointed to inaccurate descriptions of the lights at both the apartment block flats and those affecting his living room. He does not believe they could consider the lights from the apartment block are not excessive. They did not explain if their opinion would have altered if the light affected a habitable room. Lastly he says the Council’s suggestion he take his own legal action conflicts with its decision not to do so.
  2. Mr X escalated his complaint to the second stage of the Council’s complaints process. In response the Council apologised if he was upset by the conduct of officers and it was not their intention to upset him. It did not find any fault with its handling of the matter.
  3. Mr X approached us as he remains unhappy.

Analysis

  1. There is no independent account of what took place during this visit and so I cannot say what did or did not take place. Whether they identified themselves, Mr X was confident the officers were from the Council and he felt comfortable allowing them into his home. It would therefore seem likely the officers showed Mr X some identification even if he was unable to note the name of the second officer.
  2. The officers visited Mr X’s home after he made a report of light nuisance to investigate his concerns. Whether they used the term ‘statutory nuisance’, I do not consider there was any ambiguity that the purpose of their visit was to determine what action, if any, the Council could take.
  3. It is not disputed an officer suggested Mr X could put up a blind. While I cannot say if this caused Mr X to become agitated, officers will frequently suggest action that might mitigate the impacts of a nuisance. Therefore, I do not consider the suggestion was inappropriate or seeking to make mischief. I do however understand that Mr X may have felt aggrieved at the suggestion he should alter his home to counteract the impact caused by the actions of others.
  4. While Mr X and the Council disagree over whether the visit to his home was cut short, officers assessed light nuisance in both his kitchen and living room. For this reason, it would not seem the visit was cut short in any substantive way.
  5. Mr X also says officers cannot have concluded the light they witnessed was not excessive. While I appreciate this is Mr X’s view I do not consider there is any evidence of fault in how officers came to their view. The Council’s response to my enquiries demonstrates they had regard to the relevant guidance.
  6. Mr X says the Council has not said if it would have considered the light from the apartment block would be a statutory nuisance if it affected a habitable room. While I understand why Mr X would be interested to know this, I do not see the Council can provide an answer. The light is not shining into a habitable room and the Council cannot make an assessment of a theoretical situation.
  7. The visit in November identified that one of the lights was brighter than the others. The Council did not contact the managing agent, as it said it did in response to his earlier reports about this. I would have expected it to do so as it felt there were grounds to do so previously.
  8. Mr X has questioned why the Council suggested he could take his own legal action despite it saying it does not consider the light amounts to a statutory nuisance. However, the Environmental Protection Act 1990 allows him to take his own legal action even though the Council has concluded there is not a statutory nuisance. I do not consider the Council was wrong to tell him this.
  9. Most of Mr X’s concerns about the quality of the Council’s responses rest on the differing recollections of officers and Mr X about the visit to his home. I have addressed these matters elsewhere in my response. I note the Council has apologised to Mr X for any upset caused by officers. I consider this addresses any injustice caused to Mr X by the alleged fault.
  10. The Council’s Head of Environmental Health responded to Mr X’s first stage complaint in line with the Council’s usual procedure. However, Mr X’s had complained about the Head of Environmental Health’s response to Mr X’s councillor. In these circumstances it would have been more appropriate for another officer to have responded.

Agreed action

  1. The Council should apologise to Mr X for its Head of Environmental Health responding to his first stage complaint. It should also remind staff that they should not reply to complaints when their actions are part of the complaint. It should do so with within four weeks of my decision. It agreed.
  2. I note Mr X refused further assessments of the light nuisance while his complaint was ongoing. I recommended the Council contact him again to see if he would now like a different officer to consider the light nuisance. If Mr X agrees and the officer notices that one of the lights is stronger than the others, as found in the November 2018 visit, the managing agent should be contacted to see if a lower wattage bulb or other action can be taken to help reduce the impact on Mr X. The Council agreed to do so if Mr X agrees to another assessment.

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Final decision

  1. I have ended my investigation as the Council has agreed to remedy the fault I found and I do not consider the fault affected the Council’s decision the lighting does not amount to a statutory nuisance.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mr X’s concerns about the grant of planning application that granted planning permission for the apartment block. This is because he was aware of the application and its outcome in 2016. I consider it would have been reasonable for Mr X to have approached us sooner about this and I do not consider there are any grounds to exercise discretion to investigate this now.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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